The Magazine of the American Society of Landscape Architects

THE LOGGING DECISION: A SILVER LINING

Last week, the Supreme Court released its decision in Decker v. Northwest Environmental Defense Center, a case that considered the ability to regulate stormwater runoff and sediment from logging roads under the Clean Water Act. Some news reports played it as an unequivocal win for the timber industry, but a close look at the decision shows that it’s a little bit more complicated—environmental advocates may even find some comfort in it.

The case (see “On Forest Roads, Loggerheads” in the December 2012 issue of LAM) involved the application of the Clean Water Act’s “point source” permitting requirements to runoff from roads built to transport harvested timber from forested land.

The NEDC, based in Portland, Oregon, argued that building and using these roads, known as logging or forest roads, is “industrial activity” as the Clean Water Act defines it. A lot of logging roads are unpaved, and the group said that sediment from them, carried into rivers and streams by stormwater runoff, is harming aquatic life and impairing water quality.

When it rains hard, these roads do not simply produce “discharges composed entirely of stormwater,” which don’t require permits—the runoff events are more like a byproduct of gathering raw materials for a manufacturing process, the group said. So the owners of these roads should be required to get permits from the EPA or authorized state governments to cover these discharges, just as owners of a factory or mine would have to do.

But the Oregon state forestry agency and timber companies argued that the U.S. Environmental Protection Agency’s “Silvicultural Rule” for timber production exempts logging roads from permitting requirements, an interpretation the agency itself supported. In fact the EPA worked furiously to spell out this exemption in even stronger terms, going so far as to issue a new interpretation of the relevant regulations a few days before the case was argued.

The new interpretation didn’t kill the case, because the discharges at issue happened before the change. But the NEDC didn’t prevail in its attempt to broaden the permit requirement. In a 7-1 decision (Justice Stephen Breyer didn’t participate because his brother was a judge in a lower court case on the matter), the Court said that the EPA’s view that even the earlier version of the Silvicultural Rule exempted forest roads was an acceptable interpretation of CWA regulations. The NEDC had filed suit against the new rule, but the status of that case isn’t clear in light of the Supreme Court’s decision.

The technicality-driven Decker case didn’t seem to attract much attention from environmental groups. But the decision, which the New York Times characterized as “a blow to conservationists,” wasn’t all bad for them.

The EPA and the industry, in addition to defending the exemption from permits, had argued that the NEDC’s challenge to the Silvicultural Rule was not a valid citizen suit in the first place, because it wasn’t brought within 120 days of those regulations (the rule was adopted in 1976).

Steve Fleischli, the director of the water program at the Natural Resources Defense Council, told me that if the Supreme Court had agreed with that interpretation, it would have been a big setback for advocates.

Citizen suits are filed regularly to make sure environmental laws are enforced. But even though the NEDC didn’t win on the merits, the court confirmed that the citizen suit was valid because the NEDC’s reading of the regulation was a reasonable interpretation of an ambiguous rule. “The industry did argue strongly that the case should be dismissed on jurisdictional grounds,” he said. “In that regard, it was a win for environmentalists.”

And a few of the justices also questioned whether the EPA, or any agency, should be able to interpret its own regulations when they are challenged. In a typically scathing dissent, Justice Antonin Scalia said that the EPA’s interpretation of its rules in this case was “not the most natural one,” and that the permits should have been required. Deferring to the agency here, he wrote, went against the constitutional principle of separation of powers among the branches of government.

Deference to agencies has been a central part of administrative law since the mid-1990s. The court didn’t reopen the issue in this case, but Scalia, as well as Justice Samuel Alito and Chief Justice John Roberts, who concurred in that part of his dissent, is now on record as being open to taking it on in the future.

That wouldn’t necessarily be bad for environmentalists, says Fleischli. “A lot of times agencies like to maintain their discretion” when they’re writing regulations, he told me. “That can lead to a lack of clarity. Or maybe they don’t want to make a hard decision, so they split the baby and leave it for another day.” In this case, he said, he thought the EPA did overreach. “I agree that more clarity up front would be a good thing.”

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Jane